Tuesday, March 10, 2009

Dutch diviners go Delphic?

A question I have raised from time to time in our discussions of free speech and laws targeting putative "hate speech", is how is it possible for any court to draw a line around hate speech without becoming politicized and, quite possibly, mystical. I'm still trying to get my head around this report on the latest definition of hate speech from the Dutch high court. It would appear that to be guilty of hate speech in the Netherlands you have to be "needlessly offensive" and offering a criticism of a group that has little bearing on the members' substantial ideas or behaviour. I suppose this is a reasonable way for a court to limit its exposure to politics without completely tossing out a law that threatens to politicize justice. Still, while limiting the exposure of religious critics to the law, it might seem the court only makes those cases where people will be pursued by the law into something noteworthy, as if we need to make a public spectacle of the needlessly offensive, like someone saying "the devil sucks!".

One wonders how needlessly offensive comments that don't bear on the ideas or behaviour of at least some followers of a religion are to be decided. It might appear that to be guilty one has to be needlessly offensive towards a religious community in a way that is really not too consequential to the world of serious ideas. The court seems to want to leave the door open to serious criticism of religions, and yet criminalize those who are just plain rude and thus, one might think, eminently forgettable and inconsequential if not made into a public demon/martyr. In any case, one imagines finding someone guilty under this law will now become a bizarre process. Geert Wilders is the next challenge for the court:

"Stop the tumour that is Islam" is not an insult to a group on the basis of its religion, the Dutch high court ruled on Tuesday. An activist from the southern town of Valkenswaard, who had hung a poster using this slogan in his window, has been acquitted of the charge, which is similar to one of the charges faced by controversial Dutch anti-Islam member of parliament Geert Wilders.

The man from Valkenswaard had hung the poster after the 2004 murder of Dutch filmmaker Theo van Gogh by a Muslim extremist. The poster read: "Stop the tumour that is Islam. Theo has died for us. Who will be next? Resist now! National Alliance, we will not bow down to Allah. Join now." [The National Alliance in the Netherlands is an extreme right movement.]

The high court on Tuesday explained its ruling by saying that it is not a crime to express insults towards religion. "Not even if that happens in such a way that the devotees feel their religious feelings are hurt", the court said.

The highest judge in the Netherlands said that only if a needlessly offensive remark is 'explicitly' geared towards a certain group, which is distinct from others in society based on its religion, can there be a matter of group insult as defined in article 137c of the Dutch criminal code. For an insult towards a group to be punishable, that group has to be 'collectively' hit in what defines that group, namely religion. Criticism towards opinions that exist within a group or the behaviour of people belonging to that group cannot be penalized, according to the ruling.

The regional court and the court of appeals had given the man a suspended sentence, but his lawyer took the case all the way to the high court pleading that the defendant only targeted a radical part of Islam that wants to disturb western society. He said the poster was at most a political opinion about a social evil.

The high court said the same criteria of group insult will apply in the prosecution of Geert Wilders. The appeals court in Amsterdam last month ordered that Wilders should be prosecuted for hate speech and inciting discrimination because of his statements about Islam and the short film Fitna.

The judge in that case will also have to determine whether Wilders' remarks are "unmistakeably aimed at a certain group of people that are distinguished from the others in society by their religion". Wilders, when asked to respond, called Tuesday's ruling good news: "This could have consequences for my case".